After receipt of much good advice from a variety of people and some careful consideration, this blog has moved and gained a new identity, whilst maintaining all my original good intentions.
So please come and visit www.lawforyourwebsite.com and let me know what you think!
Regards
Jeanette
12 October 2010
17 December 2009
Advertising - beware the making of big promises!
Consumer protection laws provide for what can become quite substantial financial penalties against individuals or businesses found to be in breach of those laws. It is easy for an unhappy customer or client to file a complaint with Consumer Affairs and if more than one complaint is received, start a possible chain of investigation of all your business practices.
The legislation sets out a lot of the rules that businesses have to comply with in the negative, as in “a person must not, in trade or commerce, in connection with…” Since I prefer to state the positive of what you can and should be doing, that’s the way we’ll look at it now.
First things first - you want to advertise your services in a way that entices hordes of eager customers to your door. Direct response advertising is all about triggering the emotions of your buys by identifying their wants and giving them all the reasons, both positive and negative, they need to overcome any hesitancy to buy. In doing so you must be careful how you describe your goods and services. Here are some of the things you need to be aware of when describing your services. Make sure:
The legislation sets out a lot of the rules that businesses have to comply with in the negative, as in “a person must not, in trade or commerce, in connection with…” Since I prefer to state the positive of what you can and should be doing, that’s the way we’ll look at it now.
First things first - you want to advertise your services in a way that entices hordes of eager customers to your door. Direct response advertising is all about triggering the emotions of your buys by identifying their wants and giving them all the reasons, both positive and negative, they need to overcome any hesitancy to buy. In doing so you must be careful how you describe your goods and services. Here are some of the things you need to be aware of when describing your services. Make sure:
- Your services are of the particular standard, quality, value, history etc that you claim them to be.
- Your services have actually been used or bought by the people that you claim have used or bought them. (ie, don’t claim that you gave Ricky Ponting some coaching around the last cricket test if you didn’t!)
- If you claim to have sponsorship, approval or benefits to your services, the claims are true.
- You state the price clearly and in a way that cannot confuse people.
- You can provide what you say you can, when you say you can.
- If you claim your knowledge, experience or qualifications came from someone or somewhere that they actually did.
- You realistically state the need for a particular good or service.
- If you offer a condition, warranty, guarantee, right or remedy, you actually meet that commitment.
- You make claims that you can realistically substantiate.
Consider that this long list of requirements has been developed over the years and often in response to the activities of people whose business practices were considered to be unacceptable. I’ve left out a few dealing more with manufactured products and concentrated mainly on those dealing with services.
What consumer protection law does is identify all the tricky things that business people have done in the past, and attempts to identify some of the tricky things they might do in the future, to pry people away from their hard earned money. You might imagine that consumer protection law is written with the premise that people only purchase what they need, and wouldn’t otherwise spend their money, and it certainly does give that impression.
Next post we’ll have a look at Bait Advertising and how not to get caught.
14 December 2009
What do you know about the legal regulations affecting your business?
Hello, its nice to be back. I’ve been busy the last couple of months giving some presentations about legal issues affecting small business, particularly coaching businesses, and preparing a few legal products and publications to assist people in small business, (particularly those running a business on their own) which should be available for purchase in the New Year. You can guess what I’ll be doing these holidays!
Somewhat discouragingly, (or should that be encouragingly?) I received a message today from a gentleman in his 60s who has been running his business for many years, has a full time staff equivalent of 6 people and turns over on average $4m per year. He said that as a small business person you gain experience about what to worry about in contracts, do a lot of business on shaken hands and trust and learn from experience when to be wary. He said that he doesn’t use legal advice at all!
It is great to hear that people are able to continue to do business on trust. As a lawyer, we rarely get to see that side of business because people come to us generally after they need assistance, rather than for prevention.
If we look at prevention for a moment, what are the areas of your business that could do with a quick review?
Anyone dealing with the public in the sale of goods or services for personal, domestic or household use (eg, not for business or trade purposes) is obliged to comply with the requirements of the Fair Trading Act relevant to their state or territory. The Fair Trading Acts are pretty similar across the country and any complaints or issues regarding Fair Trading matters are usually managed by Consumer Affairs in that state or territory. I’ve listed all of the Consumer Affairs websites in an earlier post, so that you can find them without too much trouble.
I’m going to write a series of blogs over the next month or so covering some of the key areas of consumer protection law that you, as a business person supplying goods or services, should be aware of. If you know about it, you can do something about it. If you don’t know about it, you might be surprised when someone from Consumer Affairs gives you a call and asks you about your legal compliance issues. In the first one, I’ll talk about describing your goods or services and making sure that you are only making promises that you know you can keep.
Until then, I wish you all the best for your holidays and hope that you get to spend them with the people you cherish.
Somewhat discouragingly, (or should that be encouragingly?) I received a message today from a gentleman in his 60s who has been running his business for many years, has a full time staff equivalent of 6 people and turns over on average $4m per year. He said that as a small business person you gain experience about what to worry about in contracts, do a lot of business on shaken hands and trust and learn from experience when to be wary. He said that he doesn’t use legal advice at all!
It is great to hear that people are able to continue to do business on trust. As a lawyer, we rarely get to see that side of business because people come to us generally after they need assistance, rather than for prevention.
If we look at prevention for a moment, what are the areas of your business that could do with a quick review?
Anyone dealing with the public in the sale of goods or services for personal, domestic or household use (eg, not for business or trade purposes) is obliged to comply with the requirements of the Fair Trading Act relevant to their state or territory. The Fair Trading Acts are pretty similar across the country and any complaints or issues regarding Fair Trading matters are usually managed by Consumer Affairs in that state or territory. I’ve listed all of the Consumer Affairs websites in an earlier post, so that you can find them without too much trouble.
I’m going to write a series of blogs over the next month or so covering some of the key areas of consumer protection law that you, as a business person supplying goods or services, should be aware of. If you know about it, you can do something about it. If you don’t know about it, you might be surprised when someone from Consumer Affairs gives you a call and asks you about your legal compliance issues. In the first one, I’ll talk about describing your goods or services and making sure that you are only making promises that you know you can keep.
Until then, I wish you all the best for your holidays and hope that you get to spend them with the people you cherish.
14 November 2009
Grey Areas
I've been learning a lot about marketing this year. The key is to give the customer what they want. Sounds like common sense, doesn't it? What I've been learning and what is finally sinking in is that customers will value more and hence pay more for what they WANT than what they NEED. Even more to the point is that you actually don't have a potential customer if you are selling what you think the customer needs without even knowing if the customer thinks they need it!
The thing with most professional services, doctors, lawyers etc is that we provide a service that our client invariably NEED rather than necessarily WANT. So, as a lawyer we are already behind the eight ball when it comes to providing cost effective services. Customers are more likely to resent having to use legal services in their time of need than chosing the services they want at a time that suits them.
So the struggle I have is working out what preventative legal services you as a business owner will actually want, and appreciate, rather than trying to give you what I think you need.
What makes working out what you as a client might want, is further complicated by the fact that there are not a lot of clear answers in law. The example I used at a recent presentation was this:
Imagine a big red cross one side of the room and a big green tick the other side of the room and a whole lot of hazy grey area in between. There is very little definative right and wrong in law and a whole lot of grey area which is subject to interpretation.
What difference would it make to you if your lawyer clearly explained that the advice they are giving you is their best guess as to how it would be interpreted by a court and not the definative right answer in your situation?
The thing with most professional services, doctors, lawyers etc is that we provide a service that our client invariably NEED rather than necessarily WANT. So, as a lawyer we are already behind the eight ball when it comes to providing cost effective services. Customers are more likely to resent having to use legal services in their time of need than chosing the services they want at a time that suits them.
So the struggle I have is working out what preventative legal services you as a business owner will actually want, and appreciate, rather than trying to give you what I think you need.
What makes working out what you as a client might want, is further complicated by the fact that there are not a lot of clear answers in law. The example I used at a recent presentation was this:
Imagine a big red cross one side of the room and a big green tick the other side of the room and a whole lot of hazy grey area in between. There is very little definative right and wrong in law and a whole lot of grey area which is subject to interpretation.
Subject to Interpretation...
What difference would it make to you if your lawyer clearly explained that the advice they are giving you is their best guess as to how it would be interpreted by a court and not the definative right answer in your situation?
09 November 2009
The First Legaleasy Presentation
Hi there readers,
I just gave my first live Legaleasy presentation today to a group of about 35 coaches all training for coaching certification with Beyond Success.
I provided an overview of business legal structures, briefly covering sole traders, partnerships, trusts and companies, and a discussion around business names. We then went on to get an overview of intellectual property - trademarks, copyright, patents and designs.
Then finished with obligations to clients include fair trading/consumer affairs implied warranties, duty of care, privacy, confidentiality and record keeping.
It seemed to be well received and 25 people have given me written feedback about the top three legal concerns they have in running or setting up their coaching businesses, and I'm excited to be finding out what it is people really want to know.
Thank you to Paul and Mary Blackburn for giving me the opportunity to speak today, Jules for your support, and all the people who chose to attend the session that I presented. I appreciate the opportunity to add value!
Jeanette
I just gave my first live Legaleasy presentation today to a group of about 35 coaches all training for coaching certification with Beyond Success.
I provided an overview of business legal structures, briefly covering sole traders, partnerships, trusts and companies, and a discussion around business names. We then went on to get an overview of intellectual property - trademarks, copyright, patents and designs.
Then finished with obligations to clients include fair trading/consumer affairs implied warranties, duty of care, privacy, confidentiality and record keeping.
It seemed to be well received and 25 people have given me written feedback about the top three legal concerns they have in running or setting up their coaching businesses, and I'm excited to be finding out what it is people really want to know.
Thank you to Paul and Mary Blackburn for giving me the opportunity to speak today, Jules for your support, and all the people who chose to attend the session that I presented. I appreciate the opportunity to add value!
Jeanette
23 October 2009
Is it really necessary to register a Trademark?
This is the third part response to a question posed by Jen after reading earlier Legaleasy posts, with a delay of about a week. Sometimes life gets in the way!
Trademark registration, is it really necessary?
Great question! When you are first starting a business you probably have other items of expenditure that are going to actually help generate your business income which should have higher priority than trademark registration. In a start up business, unless you have loads of money to spend on it, earning income is the most important aspect of the business, so focus there first.
If you are concerned that your really cool logo, catchphrase or name is going to be immediately snaffled by a competitor, then you can note a little TM after it and start making enquiries about trademark registration. TM is a warning to consumers and businesses that you are declaring the name, logo etc to be a trademark of your business and something you intend to take action to protect. Have a look at Google... they only use a TM and haven't go so far as to register their name as a trademark. Don't for a minute think that they wouldn't take action to do something about you using the name for your own business!
On the other hand, look at Apple®. Apple® register all of their trademarks and take prompt action to protect them. So what is the difference?
Suing for trademark infringement is much easier and cheaper if you have a registered trademark. If you haven't registered a trademark you have to put a lot more information before the court to demonstrate that it is in fact a trademark and should belong to you to the exclusion of others before you can challenge someone else's usage of it. Some companies are pedantic about their trademarks being used, others are relaxed and consider it additional free promotion.
What you need to consider is how your business will be impacted if you do or don't register a trademark and what action you are prepared to take to protect it whether or not it is registered.
Effective trademark registration is likely to require assistance from someone who has done it before, particularly if you are wanting to argue that a combination of otherwise generic words should be trademarked. For example, it is not going to be easy to get trademark registration for something like "The Timber Shop" because it is not sufficiently distinctive or unique.
Logos and names will generally not get registration if they are considered deceptively similar to already registered logos or names. The process can be longwinded as well as it can take months to assess you trademark for registration, and if there are any issues or questions that need answering prior to registration, more time.
Registration bodies are generally government or semi-government bodies. Only pay for registration through a government endorsed site, the others are scams. If you get an email inviting you to register with an organisation, check them through government sites before handing over any money, it will save you thousands! I've had a look at a few official sites lately - in Australia the official register is IP Australia (www.ipaustralia.gov.au) - and they list some of the current scams going around and the kind of money those organisations are making, without giving you any protection at all.
I'm currently involved in assisting the process of renewing and registering about a dozen trademarks with a company I work with and the cost that they've been quoted works out at about $2,000 per trademark.
So, unless you think you have an absolute winner of a name that will need protection the instant you make it public, don't spend the money and wait months to start your business. Start your business and guage the benefit of registration before you apply.
Thanks for waiting Jen, Let me know if this helps!
Trademark registration, is it really necessary?
Great question! When you are first starting a business you probably have other items of expenditure that are going to actually help generate your business income which should have higher priority than trademark registration. In a start up business, unless you have loads of money to spend on it, earning income is the most important aspect of the business, so focus there first.
If you are concerned that your really cool logo, catchphrase or name is going to be immediately snaffled by a competitor, then you can note a little TM after it and start making enquiries about trademark registration. TM is a warning to consumers and businesses that you are declaring the name, logo etc to be a trademark of your business and something you intend to take action to protect. Have a look at Google... they only use a TM and haven't go so far as to register their name as a trademark. Don't for a minute think that they wouldn't take action to do something about you using the name for your own business!
On the other hand, look at Apple®. Apple® register all of their trademarks and take prompt action to protect them. So what is the difference?
Suing for trademark infringement is much easier and cheaper if you have a registered trademark. If you haven't registered a trademark you have to put a lot more information before the court to demonstrate that it is in fact a trademark and should belong to you to the exclusion of others before you can challenge someone else's usage of it. Some companies are pedantic about their trademarks being used, others are relaxed and consider it additional free promotion.
What you need to consider is how your business will be impacted if you do or don't register a trademark and what action you are prepared to take to protect it whether or not it is registered.
Effective trademark registration is likely to require assistance from someone who has done it before, particularly if you are wanting to argue that a combination of otherwise generic words should be trademarked. For example, it is not going to be easy to get trademark registration for something like "The Timber Shop" because it is not sufficiently distinctive or unique.
Logos and names will generally not get registration if they are considered deceptively similar to already registered logos or names. The process can be longwinded as well as it can take months to assess you trademark for registration, and if there are any issues or questions that need answering prior to registration, more time.
Registration bodies are generally government or semi-government bodies. Only pay for registration through a government endorsed site, the others are scams. If you get an email inviting you to register with an organisation, check them through government sites before handing over any money, it will save you thousands! I've had a look at a few official sites lately - in Australia the official register is IP Australia (www.ipaustralia.gov.au) - and they list some of the current scams going around and the kind of money those organisations are making, without giving you any protection at all.
I'm currently involved in assisting the process of renewing and registering about a dozen trademarks with a company I work with and the cost that they've been quoted works out at about $2,000 per trademark.
So, unless you think you have an absolute winner of a name that will need protection the instant you make it public, don't spend the money and wait months to start your business. Start your business and guage the benefit of registration before you apply.
Thanks for waiting Jen, Let me know if this helps!
22 October 2009
Jumping through domain name hoops
The law around the purchase, sale and ownership of domain names is developing all the time. There are a number of individuals and companies who have diligently gone around 'acquiring' names that can be associated with existing celebrities or businesses and put premium prices on those domain names and there has been a fair amount of discussion around whether or not that behaviour should be regulated. Some companies and individuals have sued those enterprising entreprenuers, calling them 'cyber squatters', seeking to obtain the domain names without the large price tags. (paying the lawyers instead)
Firstly, what is a domain name? Well, I had a look in Wikipedia for a useful definition and found something equivalent to legalese, so my alternative (and possibly not wholly technically accurate) explanation is that the domain name provides people surfing the web with a virtual address to find you. Thats it. It doesn't necessarily give you a website and it doesn't automatically appear as a webpage just because you purchase the address. It does give you the exclusive right to attach webpages or a website to the address for people to find for as long as you remain the registered owner.
Like registering a business name, there aren't a lot of hoops to go through. You find a domain name seller (from my experience www.godaddy.com is pretty good), search the site for the domain name you want, and purchase it if it is available.
Again, hints are:
Firstly, what is a domain name? Well, I had a look in Wikipedia for a useful definition and found something equivalent to legalese, so my alternative (and possibly not wholly technically accurate) explanation is that the domain name provides people surfing the web with a virtual address to find you. Thats it. It doesn't necessarily give you a website and it doesn't automatically appear as a webpage just because you purchase the address. It does give you the exclusive right to attach webpages or a website to the address for people to find for as long as you remain the registered owner.
Like registering a business name, there aren't a lot of hoops to go through. You find a domain name seller (from my experience www.godaddy.com is pretty good), search the site for the domain name you want, and purchase it if it is available.
Again, hints are:
- don't try and register something that you know is someone elses brand name, it'll only end in tears
- know who or what entity is going to own the domain name and whether that is the same person or entity that is going to operate the website (it doesn't have to be, but you should put a written agreement in place between the entities to clarify the legal relationships if it isn't)
- know why you want a particular domain name and how much you are prepared to pay for it if someone else has already registered it
You can buy a domain name from an existing registered owner rather than through a domain name company, but if you want to go down that path be careful about handing any money over before you have access to the domain name. Chasing up money you have paid overseas is expensive, labourious and often unsuccessful. Obviously a domain name which comes up without website content attached to it has the chance of being easier and cheaper to acquire than a domain name with a website attached.
.. tomorrow, a note on trademarks...
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